West v. J.O. Stevenson, Inc., et al

Filing 37

ORDER granting 22 Motion to Dismiss and granting in part and denying in part 24 Motion to Dismiss - Signed by District Judge Louise Wood Flanagan on 2/24/2016. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
NO. 7:15-CV-87-FL

CHARLES E. WEST,
Plaintiff,
v.
J.O. STEVENSON, INC.; STEVENSON
AUTOMOTIVE, INC.; SAG PAYROLL,
LLC; STEVENSON AUTOMOTIVE
HOLDING COMPANY, LLC, doing
business as Stevenson Automotive Group;
and JOHN O. STEVENSON, individually,
Defendants.

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ORDER

This matter is before the court on the motion to dismiss of defendants J.O. Stevenson, Inc.
(“J.O. Stevenson”), Stevenson Automotive, Inc. (“Stevenson Automotive”), SAG Payroll, LLC
(“SAG Payroll”), and Stevenson Automotive Holding Company, LLC (“SAG Holding”)
(collectively the “Stevenson Automotive Group” defendants), made pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a
claim upon which relief can be granted. (DE 24). Also pending before the court is the motion to
dismiss of defendant John Stevenson (“Stevenson”), made under those same rules. The issues raised
have been briefed fully and are ripe for ruling. For the reasons stated more specifically below the
Stevenson Automotive Group defendants’ motion is granted in part and denied in part, and certain
of plaintiff’s claims are dismissed without prejudice. Defendant Stevenson’s motion is granted.

BACKGROUND
Plaintiff, until his termination in February 2014, was the sales manager of Stevenson Kia of
Jacksonville (“Stevenson Kia”), an automobile dealership located in Jacksonville, North Carolina.
Stevenson Kia is one of several dealerships owned and operated by defendant J.O. Stevenson.
Defendant J.O. Stevenson, in connection with the other Stevenson Automotive Group defendants,
is part of the omnibus business entity, “Stevenson Automotive Group.” Defendant John Stevenson
owns and operates each of the Stevenson Automotive Group defendants.
Plaintiff was employed by one of the Stevenson Automotive Group defendants. However,
his employment was terminated on February 20, 2014, some two months after a car accident that
left him with cognitive impairment. On May 4, 2015, plaintiff filed suit over the circumstances
surrounding his termination, as well as certain allegedly improper payroll practices, which he
noticed only after he received his final paycheck. Plaintiff alleges five claims against all defendants.
In particular, plaintiff alleges:
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that defendants violated the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601–2654,
where defendants interfered with his rights guaranteed by the FMLA and terminated him in
retaliation for taking FMLA-guaranteed leave (“Claim I”);

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that defendants violated the Americans with Disabilities Act of 1990 (“ADA”), as amended
by the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”), 42 U.S.C.
§ 12101 et seq., where he was actually disabled and defendants failed to accommodate his
temporary disability, interfered with the accommodation provided to him, terminated him
in retaliation for requesting an accommodation, and terminated him in retaliation for using
the accommodation provided to him (“Claim II”); and

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that defendants violated the ADAAA where plaintiff was “regarded as” disabled and
defendants terminated him as a result of that belief (“Claim III”).

In addition, plaintiff contends that he was wrongfully discharged in violation of North Carolina
public policy, as established by the North Carolina Equal Employment Practices Act, N.C. Gen. Stat.
§ 143–422.2, where he was terminated on the basis of his disability (“Claim IV”), and that
defendants violated the North Carolina Wage and Hour Act (“NCWHA”), N.C. Gen. Stat. §§
95–25.1 et seq., where defendants improperly retained wages or other compensation owed to him
from sometime in 2012 until after his termination (“Claim V”).
On July 2, 2015, the Stevenson Automotive Group defendants filed the instant motion to
dismiss. Those defendants contend that the court lacks subject matter jurisdiction over each of
plaintiff’s claims because plaintiff has failed to plead facts supporting the inference that any of them
were his “employer,” as that term is used for the purpose of each statute. In addition, the Stevenson
Automotive Group defendants contend:
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Claim I should be dismissed because plaintiff failed to plead sufficient facts to support a
claim for interference because he suffered no harm cognizable under the FMLA, and also
because he has not shown he engaged in any protected activity that may be the basis for a
retaliation claim;

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Claim II should be dismissed because plaintiff failed to plead sufficient facts to support the
inference that he is disabled, and because he failed to plead sufficient facts to support the
conclusion that his temporary disability was sufficiently serious to qualify as a “disability”
under the ADA; and

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Claim III should be dismissed because plaintiff failed to allege facts to support the inference
that defendants mistakenly believed he was disabled.

In addition, the Stevenson Automotive Group defendants argue that the court should dismiss Claim
V because it does not share a “common nucleus of operative fact” with Claim I, Claim II, or Claim
III, and, thus, that it would be improper to exercise supplemental jurisdiction over that claim. In any
event, the Stevenson Automotive Group defendants also contend that the court should decline to
exercise supplemental jurisdiction over both Claim IV and Claim V under 28 U.S.C. § 1367(c),
where Claims I through III, the claims over which the court has original jurisdiction, should be
dismissed.
On that same day, defendant Stevenson also filed a motion to dismiss. In large part, the
arguments made in support of defendant Stevenson’s motion mirror those made in support of the
Stevenson Automotive Group defendants’ motion. However, defendant Stevenson also contends
that each of plaintiff’s claims, to the extent they are asserted against him in his capacity as owner
or manager of the Stevenson Automotive Group, should be dismissed because of his individual
status.
In response to defendants’ motions, plaintiff contends that, to the extent defendants argue
the court lacks subject matter jurisdiction over each of his claims solely because he has failed to
plead the identity of his “employer” with sufficient specificity, defendants’ motion should be denied,
where proof any defendant “employed” the plaintiff is a substantive element of each of his claims,
not a jurisdictional issue, and that, in any event, he has pleaded defendants’ “employer” status with
sufficient specificity to survive a motion to dismiss for failure to state a claim. Plaintiff also
contends that defendants’ attack on Claim I, to the extent it sounds as a claim for retaliation, is

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misplaced, because his claim sounds as a “hybrid” interference/retaliation claim. In addition, as to
Claim IV and Claim V, plaintiff argues that Claim IV and V share a common nucleus of operative
fact with Claim I, Claim II, and Claim III, which are properly pleaded and over which the court has
original jurisdiction.
As to Claim II and Claim III, plaintiff concedes that these claims fail as to defendant
Stevenson to the extent they assert his liability in his individual capacity. However, as to Claim II
against the Stevenson Automotive Group defendants, plaintiff contends that they over-state the
“disability” threshold required by the ADAAA. As to Claim III against those same defendants,
plaintiff argues that the ADAAA supplanted the ADA’s “mistaken belief” requirement.
STATEMENT OF FACTS
The court accepts the factual allegations in the complaint as true and summarizes the
following facts pertinent to the instant motions to dismiss. Matrix Capital Mgmt. Fund, LP v.
BearingPoint, Inc., 576 F.3d 172, 176 (4th Cir. 2009).
Plaintiff began “working for” defendant Stevenson Automotive, a constituent part of the
Stevenson Automotive Group, in November 2003 as a sales consultant. (Compl., DE 8, ¶¶12–31).1
After a short time, plaintiff began to rise through the ranks, becoming the Finance Manager and a
Sales Manager for Stevenson Kia, an automobile dealership owned by defendant J.O. Stevenson,
in 2007; eventually he became the General Sales Manager for Stevenson Kia in 2009. (Id. ¶¶12,
32–33). In his position as General Sales Manager of Stevenson Kia, plaintiff turned the sales of the

1

Plaintiff does not specifically allege that defendant Stevenson Automotive was his employer at the time of
his termination. Read in context, plaintiff alleges that he was working for each of the Stevenson Automotive Group
defendants at the time of his termination.

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previously-struggling dealership around, making it “one of the top Kia dealerships . . . in the nation.”
(Id. ¶¶41–44).
As General Sales Manger of Stevenson Kia, plaintiff reported directly to Paul McCarthy, the
Stevenson Automotive Group’s Corporate Executive General Manager, who was employed by all
Stevenson Automotive Group defendants. (Id. ¶¶18.e, 30, 35–36). McCarthy, in turn, reported to
defendant Stevenson, the owner, manager, and chief executive officer (“CEO”) of defendant J.O.
Stevenson, as well as the other Stevenson Automotive Group defendants. (Id. ¶¶16, 18.f, 35).
McCarthy was not the only shared employee; the Stevenson Automotive Group defendants
employed a number of other overlapping executives including Charlie Daniel, the Stevenson
Automotive Group defendants’ Corporate Assistant General Manager; Steve Davis, the Stevenson
Automotive Group defendants’ Human Resources Director; and Wayne Fortier, the Stevenson
Automotive Group defendants’ Chief Financial Officer. (Id. ¶¶18.e, 30).
In addition to these shared employees, the Stevenson Automotive Group defendants overlap
in other ways. For example, defendant SAG Payroll handles financial and employment matters for
the remaining Stevenson Automotive Group defendants. (Id. ¶¶18.a). The Stevenson Automotive
Group defendants, along with their manager and CEO, defendant Stevenson, also use an integrated
system to document sales made by the “Stevenson Automotive Group,” a common web page, and
an integrated marketing scheme (Id. ¶¶18.b–18.c). Finally, McCarthy manages each of the
Stevenson Automotive Group defendants as if they were one, joint entity. (Id. ¶18.d).2

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In their recitation of the facts, the Stevenson Automotive Group defendants suggest that defendant SAG
Holding is not connected to the other Stevenson Automotive Group defendants. At the motion to dismiss stage, the court
considers only the facts as they are alleged in the complaint.

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From the time plaintiff assumed his position as General Sales Manger of Stevenson Kia until
December 5, 2013, plaintiff’s work was recognized and complemented by both McCarthy and
defendant Stevenson, and defendant Stevenson lauded plaintiff as an exemplar of the “operational
and management excellence” he sought from all similarly situated employees. (Id. ¶¶45–48).
Plaintiff’s fortunes changed on December 5, 2013, when he was involved in a severe car accident
that caused a concussion and swelling in his neck and head. (Id. ¶49). Shortly after the accident,
plaintiff began slurring his words and became increasingly confused and disoriented. (Id. ¶50).
Plaintiff was not scheduled to work on December 6, 7, or 8, 2013. (See id. ¶58). However, on
December 7 or 8, 2013, plaintiff contacted McCarthy to inform him of the accident. (See id. ¶57).
During that conversation, plaintiff told McCarthy that “he did not believe he was able to return to
work” as scheduled, to which McCarthy responded “that’s what you need to do; sit home in self-pity
feeling sorry for yourself.” (Id.).
Plaintiff returned to work as scheduled on December 9, 2013, but, as a result of his injuries,
the quality of plaintiff’s work suffered significantly and appreciably. (See id. ¶¶58–60). On
December 10, 2013, plaintiff visited a chiropractor who observed that plaintiff “ha[d] signs of a
closed head injury with post concussion type of syndrome,” and that plaintiff’s “speech and
awareness [were] affected.” (Id. ¶51). Plaintiff’s chiropractor stressed the need for a neurological
evaluation. (Id.). Later, on December 16, 2013, plaintiff visited a family practice physician who
reported similar findings. (Id. ¶52). Specifically, plaintiff’s doctor diagnosed him with a concussion
and a closed head injury, as well as a depressive disorder. (Id.). Plaintiff’s doctor further noted that

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his “recent memory was abnormal,” (id.), but that with proper treatment and rest, the effects of
plaintiff’s injury would last for less than six months. (See id. ¶¶54, 153).3
Shortly thereafter, plaintiff met with defendant Stevenson who, in recognition of plaintiff’s
injuries, told him “that he could go home until the end of the year if he needed to do so.” (Id. ¶61;
see also id. ¶¶58–60). Following his conversation with defendant Stevenson, on December 18, 2013,
plaintiff met with Davis, who authorized and approved plaintiff for paid leave commencing on
December 18, 2013, through the remainder of that year. (Id. ¶62). Davis informed plaintiff that he
would be required to produce a doctor’s note certifying his readiness to work before he would be
allowed to return to work. (Id.).
Between December 19, 2013, and January 1, 2014, while plaintiff was on approved leave,
Daniel, at the behest of McCarthy, the Stevenson Automotive Group defendants, as well as
defendant Stevenson, contacted plaintiff and “pressured” him to return to work. (Id. ¶64).
Specifically, Daniel told plaintiff “that he would not be able to sit at home being non-responsive to
work issues and that [he] needed to return to work.” (Id.). Following plaintiff’s conversation with
Daniel, plaintiff reached out to McCarthy to remind McCarthy that he was on approved, paid leave
until the end of the year, and that he could not return without a doctor’s note, per Davis’s
instructions. (Id. ¶¶64–65). During the course of that conversation, McCarthy told plaintiff “not
to worry about securing a work note from a medical doctor,” that he would “handle” Davis, and that
plaintiff should return to work by January 2, 2014, “if he wanted to keep his job.” (Id. ¶¶65–67).

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Plaintiff does not allege with specificity the precise expected duration of his symptoms.

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Despite attempting to, and ultimately being unable to obtain a doctor’s note certifying his
readiness to return to work, (id. ¶63), plaintiff returned to work on January 2, 2014. After his return
to work, plaintiff “repeatedly” told McCarthy that he “was not himself” and “did not need to be at
work”; plaintiff also “repeatedly” asked for “leave” to recover from his closed head injury and seek
treatment. (Id. ¶¶70–72). Despite plaintiff’s protestations, McCarthy “refused” to grant plaintiff
leave and failed to discuss with plaintiff any temporary, alternative or reduced-work arrangement
that might assist in plaintiff’s recovery. (Id. ¶73). Rather, McCarthy “continued to pressure
[plaintiff] to keep working so that he could keep the Stevenson Kia sales volume up.” (Id.).
On January 14, 2014, plaintiff was granted leave, albeit for a different, more somber reason.
(See id. ¶75). In particular, plaintiff was granted leave from January 15, 2014, through January 26,
2014, following medical confirmation that plaintiff’s unborn son had died in utero. (See id.).
Following the burial of plaintiff’s son, he returned to work on January 27, 2014. (Id. ¶¶75–76).
As of January 27, 2014, plaintiff still was suffering from the adverse effects of his closed
head injury, which at that time, included memory loss, cognitive impairment, slurred speech, and
his previously-diagnosed depressive disorder. (Id. ¶¶77, 81). The death of plaintiff’s son
exacerbated his depression and compelled him to seek additional leave. (See id. ¶¶78, 82–83). In
particular, plaintiff again informed McCarthy that he was not himself and did not need to be at work.
(Id. ¶82). In addition, plaintiff requested leave to recover from his closed head injury and cognitive
impairment, as well as recover from his severe depression and to assist his wife who had been
admitted to the hospital prior to their son’s death. (Id. ¶¶78–79, 83). However, again, McCarthy
refused plaintiff’s request on behalf of the Stevenson Automotive Group defendants and implored

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plaintiff to “keep working, keep the Stevenson Kia sales numbers at their historically high levels.”
(Id. ¶84).
On or around February 10, 2014, plaintiff’s depression and memory loss began to worsen,
and plaintiff began to suffer from nightmares. (See id. ¶86). As a result, plaintiff requested leave
so that he could receive proper treatment and recover from his December 5, 2013, injury. (Id. ¶87).
However, despite plaintiff’s request, the Stevenson Automotive Group defendants, through
McCarthy, refused and further refused to negotiate with plaintiff as to the viability of any alternative
work arrangements. (Id. ¶88). On February 20, 2014, McCarthy demanded plaintiff’s resignation,
citing as his basis Stevenson Kia’s decreased profitability, a reason which plaintiff alleges to be
false. (Id. ¶¶89–91). Plaintiff refused; reminded McCarthy that had he been provided an appropriate
amount of time away from work, he would have recovered earlier; and subsequently was terminated.
(Id. ¶¶92–95). Specifically, plaintiff alleges that with proper leave he would have recovered sooner.
(Id. ¶93).
Following plaintiff’s February 20, 2014, termination he requested all of his unpaid wages,
commissions, bonuses, incentives, longevity pay, and vacation pay be remitted to him at the end of
the next regularly-scheduled pay period. (Id. ¶96). Following his request, on March 20, 2014,
plaintiff received a letter from McCarthy, written on behalf of defendants and dated March 12, 2014,
which included a check for Plaintiff’s prorated salary, as well as “added compensation” in
satisfaction of plaintiff’s earned incentive pay. (See id. ¶¶97–98). However, plaintiff’s final
payment from defendants reflected two alleged accounting errors. First, the added compensation
did not accurately reflect the incentive pay owed to plaintiff; plaintiff’s incentive pay had been

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discounted by an undisclosed method, to which plaintiff had not agreed. (Id. ¶¶98–100). Second,
the letter did not address plaintiff’s vacation pay or longevity pay. (Id. ¶99).
McCarthy’s March 12, 2014, letter, and accompanying check, were the first time plaintiff
became aware of an allegedly impermissible system of “charge backs” and “packs” against
commissions, bonuses, and incentives, which had been implemented by the Stevenson Automotive
Group defendants’ Chief Financial Officer, Fortier, some time in 2011 or 2012. (Id. ¶¶100–01). The
program was undocumented, had never been reduced to writing, and had been put into place by
Fortier without notice to plaintiff or other, similarly situated employees. (Id. ¶¶102–04).
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on August 11, 2014. (Id. ¶105). On February 6, 2015, the EEOC issued to
plaintiff a Notice of Right to Sue letter. (DE 8-1).
COURT’S DISCUSSION
A.

Standard of Review
1.

Federal Rule of Civil Procedure 12(b)(1)

A Rule 12(b)(1) motion challenges the court’s subject matter jurisdiction, and the plaintiff
bears the burden of showing that federal jurisdiction is appropriate when challenged by the
defendant. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982). Such a motion may either 1) assert the complaint fails to state
facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject
matter jurisdiction in fact, apart from the complaint. Bain, 697 F.2d at 1219. Under the former
assertion, the moving party contends that the complaint “simply fails to allege facts upon which
subject matter jurisdiction can be based.” Id. In that case, “the plaintiff, in effect, is afforded the

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same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Id. “[T]he
facts alleged in the complaint are assumed true, and the motion must be denied if the complaint
alleges sufficient facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187,
192 (4th Cir. 2009). When the defendant challenges the factual predicate of subject matter
jurisdiction, a court “is to regard the pleadings’ allegations as mere evidence on the issue, and may
consider evidence outside the pleadings without converting the proceeding to one for summary
judgment.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th
Cir. 1991). The nonmoving party “must set forth specific facts beyond the pleadings to show that
a genuine issue of material fact exists.” Id.
2.

Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint but
“does not resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992); see also Edwards v. City
of Goldsboro, 178 F.3d 231, 243–44 (4th Cir.1999). A complaint states a claim under 12(b)(6) if it
contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” Id.
“Factual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. In evaluating the complaint, “[the] court accepts all well-pled facts as
true and construes these facts in the light most favorable to the plaintiff,” but does not consider
“legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual

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enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
Where a motion to dismiss challenges only plaintiff’s failure to allege sufficient facts, any order
dismissing the complaint necessarily is without prejudice, unless the court also concludes that an
amendment would be frivolous. See Goode v. Cent. Va. Legal Aid Soc., Inc., 807 F.3d 619, 623–24
(4th Cir. 2015).
B.

Stevenson Automotive Group Defendants’ Motion
1.

Defendants as Plaintiff’s “Employer”

The Stevenson Automotive Group defendants launch a broad-based challenge to plaintiff’s
allegations that they, collectively, were his “employer.” In particular, they argue that plaintiff has
failed to plead that each of them are “employers” within the meaning of the relevant statutes, and
that plaintiff’s complaint contains insufficient factual specificity to move forward under either a
“joint employment” or “integrated employer” theory. In response, plaintiff notes that he intends to
move forward under either a “joint employment” or “integrated employer” theory, but argues that
he has pleaded sufficient facts to do so.
a.

Appropriate Rule for Address

Before turning to the merits of the Stevenson Automotive Group defendants’ argument, the
court first addresses the parties’ disagreement about whether a particular defendant’s “employer”
status is a jurisdictional fact, or a substantive element of each of plaintiff’s claims.
Plaintiff’s claims fall into two groups: labor relations claims under the FMLA and NCWHA
and civil rights claims under the ADAAA and North Carolina common law. Claims in both groups
must be asserted against the plaintiff’s “employer,” as that term is defined by the relevant statute.

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Under the relevant labor relations statutes, an “employer” is either a person “engaged in commerce
or in any industry or activity affecting commerce who employs 50 or more employees for each
working day during each of 20 or more calendar workweeks in the current or preceding calendar
year,” 29 U.S.C. § 2611(4), or “a person acting directly or indirectly in the interest of an employer
in relation to an employee.” N.C. Gen. Stat. § 95–25.2(5). Under the relevant statutes supporting
plaintiff’s civil rights claims, an “employer” is any person “engaged in an industry affecting
commerce who has 15 or more employees for each working day in each of 20 or more calender
weeks in the current or preceding calendar year.” 42 U.S.C. § 12111(5)(A); accord N.C. Gen. Stat.
§ 143–422.2.
Historically, on both labor relations and civil rights claims, the Fourth Circuit required
district courts to inquire, as a threshold matter, into whether the defendant was an “employer”; the
court reasoned that an entity’s status as an “employer” was a jurisdictional fact.4 Hukill v. Auto
Care, Inc., 192 F.3d 437, 441 (4th Cir. 1999), abrogated by Arbaugh v. Y&H Corp., 546 U.S. 500
(2006); Woodard v. Va. Bd. of Bar Examiners, 598 F.2d 1345, 1346 (4th Cir. 1979). In Arbaugh
v. Y&H Corp., 546 U.S. 500 (2006), the Supreme Court altered that paradigm, holding that, for
claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq., a particular aspect of the statutory definition of “employer”–the “employee-numerosity”
requirement–was a substantive ingredient of a plaintiff’s claim for relief.5

Id. at 514–16.

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The parties do not suggest that the jurisdictional versus substantive distinction of the “employer” issue, as
discussed above in the context of federal law, requires different or additional treatment under North Carolina law. Thus,
the court treats the issue the same under both bodies of law.
5

Title VII, as well as other similar statutes, contain an “employee-numerosity” requirement, which exempts
from the statute’s reach any potential defendant that does not employ a minimum number of employees. See, e.g., 42
U.S.C. § 2000e(b) (defining an “employer” as having at least 15 employees).

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Acknowledging that federal courts are obliged to inquire into their own jurisdiction, even where the
parties do not challenge it, the Court reasoned that the “employee-numerosity” requirement was not
jurisdictional because “[n]othing in the text of Title VII indicates that Congress intended courts, on
their own motion, to assure that the employee-numerosity requirement is met.” Id. at 514.
Even though Arbaugh expressly compels only the conclusion that the employee-numerosity
requirement is a substantive ingredient of a Title VII claim, leaving open the possibility that other
aspects of the definition as used in Title VII, as well as other definitions of the same term use in
various statutes still may be jurisdictional, it is evident that the Arbaugh Court’s reasoning sweeps
more broadly than the narrow holding of that case. Neither the FMLA, nor the ADAAA, the
relevant statutes here, command independent judicial validation of any aspect of the definition of
“employer.” To the contrary, the “employer” provisions of those statutes are identical to the Title
VII provision at issue in Arbaugh. Compare 29 U.S.C. § 2611(4); 42 U.S.C. § 12111(5); and N.C.
Gen. Stat. § 95–25.2, with 42 U.S.C. § 2000e(b). Other courts have agreed. See, e.g., Doak v.
Johnson, 798 F.3d 1096, 1103–04 (D.C. Cir. 2015) (holding timely exhaustion of administrative
remedies not a jurisdictional requirement where Congress has not clearly stated so); Cobb v.
Contract Transp., Inc., 452 F.3d 543, 549–50 (6th Cir. 2006) (holding Arbaugh overruled circuit
precedent on jurisdictional nature of “employer” status in FMLA cases); Minard v. ITC Deltacom
Commc’ns, Inc., 447 F.3d 352, 356–57 (5th Cir. 2006) (same). Accordingly, the court concludes
that, inasmuch as defendants’ motions sound under Rule 12(b)(1), they must be denied. However,
defendants’ motions are susceptible to address under Rule 12(b)(6).

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b.

The Stevenson Automotive Group Defendants as One “Employer”

Labor relations and civil rights claims both may be litigated against multiple defendants
under the theory that they form a single “employer” under either the “joint employment” or
“integrated employer” theories of liability. The “joint employment” theory allows an employee to
pursue a labor relations or civil rights claim against a defendant that is not technically his employer,
where the plaintiff’s work benefits that defendant and the defendant controls certain aspects of the
plaintiff’s employment. See Butler v. Drive Auto. Indus., 793 F.3d 404, 408–10 (4th Cir. 2015)
(adopting test for civil rights claims); Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298, 305–06 (4th
Cir. 2006) (adopting test for labor relations claims). In particular, a plaintiff is jointly employed by
two or more entities where they each retain sufficient control of the “terms and conditions of the
employment of the employees who are employed by the other employer.” Butler, 793 F.3d at 408
(citing Torres-Negrón v. Merck & Co., 488 F.3d 34, 40 n.6 (1st Cir. 2007)) (internal quotations
omitted). “In other words, ‘courts look to whether both entities exercise significant control over the
same employees.’” Id. (quoting Bristol v. Bd. of Cty. Comm’rs, 312 F.3d 1213, 1218 (10th Cir.
2002) (en banc)) (internal quotations omitted).
The “joint employment” doctrine is applied with slight variation in civil rights and labor
relation claims. In civil rights claims, on one hand, the Fourth Circuit has instructed courts to weigh
the control exerted over the employee by her or his putative employers, as well as the economic
realities of those relationships, in determining whether the plaintiff is jointly employed. See id. at
414 (summarizing control, economic realities, and hybrid test; adopting hybrid test). On the other
hand, in the labor relations context, the Fourth Circuit has instructed courts to examine only the
economic realities of the employment relationship. See Schultz, 466 F.3d at 304–05; see also Butler,

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793 F.3d at 409 (describing joint employment theory in labor relations claims as focusing on the
economic realities of the putative employment relationship). This difference is attributable to the
more expansive definition of “employ” used in the labor relations statutes. See 29 U.S.C. § 203(g)
(defining “employ” as “suffer or permit to work”); see also Butler, 793 F.3d at 412 n.10 (“[T]he
[Fair Labor Standards Act] uses a different definition of ‘employee’ such that the statute is not
directly analogous to Title VII. . . . As such, [Fair Labor Standards Act] cases employing the
economic realities test–and indeed any test–are not particularly transferrable to Title VII cases.”).6
By contrast, the “integrated employer” doctrine focuses on the interconnectedness of two
purportedly independent entities. See Hukill, 192 F.3d at 442, abrogated on other grounds by
Arbaugh, 546 U.S. 500 (2006). Separate entities may be a single, “integrated” employer where they
share common management, have related operations, share control of labor relations, and have a
degree of common ownership or financial control. Id.; see also 29 C.F.R § 825.104(c)(2). Because
the integrated employer doctrine highlights the relationship between two or more putative
“employers,” rather than focusing on their control over the plaintiff employee, as is the case with
the “joint employment” doctrine, the same “integrated employer” analysis is applied with respect
to both labor relations and civil rights claims. Hukill, 192 F.3d at 442 (collecting cases; noting that
the doctrine was adopted for purposes of the Fair Labor Standards Act and later applied to other
statutes).

6

Generally, “employee,” as that term is used in the various civil rights statutes, is defined by common law.
See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322–23 (1992); see also Haavistola v. Cmty. Fire Co. of Rising
Sun, Inc., 6 F.3d 211, 219–21 (4th Cir. 1993). However, in the context of labor relations statutes, such as the FMLA
or similarly-defined Fair Labor Standards Act (“FLSA”), the term “employee” is defined by statute as to “suffer or permit
to work.” 29 U.S.C. § 203(g). To “suffer or permit to work” is considered to be a more expansive definition of the term
“employee,” which requires application of those statutes embracing such definition “to many persons and working
relationships, which . . . [otherwise], [would] not [be] deemed to fall within an employer-employee category.”
Rutherford Food Corp. v. McComb, 331 U.S. 722, 729 (1947).

17

Regardless of the applicable theory, at the motion to dismiss stage the fact-specific inquiry
required to determine whether plaintiff is “jointly employed” by two or more defendants, or,
similarly, whether those defendants are “integrated employers,” is all but impossible. To properly
argue the abundant, detailed factors relevant to either consideration a plaintiff likely will require
discovery to fully bear out the defendants’ relationship to each other, the number of employees over
which they share control, the extent of their interconnectedness, or any other number of pertinent
considerations. Cf. generally, Grace v. USCAR, 521 F.3d 655 (6th Cir. 2008) (applying joint
employer and integrated employer test at summary judgment); Moreau v. Air France, 356 F.3d 942
(9th Cir. 2003) (applying joint employer test at summary judgment). Relatedly, for the court to
engage in the careful balancing analysis either test demands on an incomplete record would greatly
impede an aggrieved plaintiff’s access to justice. Nevertheless, the complaint still must plausibly
allege some facts to support either the “joint employment” or “integrated employer” theory, or else
risk undermining completely the Twombly-Iqbal standard of pleading. See, e.g., Cano v. DPNY,
Inc., 287 F.R.D. 251, 260 (S.D.N.Y. 2012); Quinteros v. Sparkle Cleaning, Inc., 532 F. Supp. 2d
762, 775–76 (D. Md. 2008). With these standards in mind, the court now addresses the sufficiency
of plaintiff’s complaint.
i.

Joint Employer - Civil Rights Claims

At the time the parties briefed the instant motion, the Fourth Circuit had not explicitly
adopted the joint employment doctrine for civil rights claims. However, recently, in Butler v. Drive
Automotive, the court not only adopted the doctrine but also defined several factors that the district
court should weigh in assessing a purported joint employment relationship. 793 F.3d at 414.
Specifically, the “principal guidepost in the analysis” is the common-law element of control. Id.

18

However, other relevant factors include: 1) authority to hire and fire the individual; 2) day-to-day
supervision of the individual, including employee discipline; 3) possession of and responsibility over
the individual’s employment records, including payroll, insurance, and taxes; 4) the length of time
during which the individual has worked for the putative employer; 5) whether the putative employer
provides the individual with formal or informal training; 6) whether the individual is assigned solely
to the putative employer; and 7) whether the individual and putative employer intended to enter into
an employment relationship. Id.
Plaintiff has failed to plausibly allege that he was “jointly employed” by the Stevenson
Automotive Group defendants for purposes of his civil rights claims. Plaintiff does not allege the
identity of his actual employer, nor does he identify the employers that purportedly control his dayto-day activities. Here, although plaintiff has alleged that he worked at Stevenson Kia, and
suggested that Stevenson Kia was owned by defendant J.O. Stevenson, those facts are not sufficient
to plausibly state which of the Stevenson Automotive Group defendants actually employed plaintiff.
Rather, plaintiff refers to himself as an employee of “defendants.” (See, e.g., Compl. ¶¶26, 30).
Although plaintiff need not plead specifically each of the Butler factors at this early stage, at a
minimum, he must identify his putative employer and any other putative “joint employers” his work
was intended to benefit. In addition, plaintiff must plead facts that suggest the joint employers
exercise control over his work, as well as the work of a sufficient number of other employees.
Without more factual specificity, plaintiff’s civil rights claims, inasmuch as they are predicated on
a joint employment theory, cannot proceed.

19

ii.

Joint Employer - Labor Relations Claims

On plaintiff’s labor relations claims, a joint employment analysis similarly fails. For the
purposes of labor relations claims, a joint employment analysis requires balancing 1) the degree of
control the putative employer has over the manner in which the work is performed; 2) the worker’s
opportunities for profit or loss dependent on his managerial skill; 3) the worker’s investment in
equipment or material, or his employment of other workers; 4) the degree of skill required for the
work; 5) the permanence of his working relationship; and 6) the degree to which the services
rendered are an integral part of the putative employer’s business. Schultz, 466 F.3d at 304–05.
Again, plaintiff’s complaint falls short of plausibly alleging that defendants were his joint
employers. Its principal shortcoming is the failure to allege sufficient facts to support the first
factor, control. Plaintiff does not identify his purported employer. Further, he does not identify any
work he did for the benefit of the other defendants. Without that minimum degree of factual
specificity plaintiff’s joint employment theory of his labor relations claims must fail.
iii.

Integrated Employer

Rather than focus on collective control over a group of employees, the integrated employer
doctrine focuses on the overlap between various, and purportedly separate business entities. To
determine whether a group of businesses are “integrated,” the court focuses on 1) whether they share
a common management; 2) the degree of interrelatedness between their operations; 3) the degree
of centralization of control of labor relations; and 4) the degree of common ownership or financial
control. 29 C.F.R. § 825.104(c)(2)(i)–(iv); Hukill, 192 F.3d at 442. These factors are common
across both civil rights and labor relations claims. See id. n.6.; see also Swallows v. Barnes & Noble
Book Stores, Inc., 128 F.3d 990, 993–94 (6th Cir. 1997) (applying same factors to ADA claim).

20

As to the Stevenson Automotive Group defendants, plaintiff has pleaded the “integrated
employer” theory of liability with sufficient specificity. For example, defendant Stevenson operates
and manages each of the Stevenson Automotive Group defendants. (Compl. ¶16). Defendants
Stevenson Automotive, SAG Payroll, and SAG Holding all share a principal place of business, (id.
¶¶13–15), and the Stevenson Automotive Group defendants all use a single system to document the
sale, titling, reporting, and financing of all vehicles sold. (Id. ¶18.b). In addition, defendant SAG
Payroll issues paychecks and tax forms for defendants J.O. Stevenson, Stevenson Automotive, and
SAG Holding, (id. ¶18.a), and, as a group, the Stevenson Automotive Group defendants collectively
employ a core group of individuals as managers. (Id. ¶30). Finally, each of the Stevenson
Automotive Group defendants are owned by defendant Stevenson, (id. ¶¶16, 18f), and rely on a
common marketing scheme and web page, branded under the umbrella-name, Stevenson Automotive
Group. (Id. ¶18.c). These facts are more than sufficient to successfully state a claim for violation
of the civil rights or labor relations statutes at issue under the “integrated employer” theory of
liability.
In sum, the complaint cannot be dismissed against the Stevenson Automotive Group
defendants for failure to plead the “employer” element of the claims asserted. Although plaintiff
has not sufficiently pleaded control to withstand a challenge to the “joint employer” theory of
liability under Rule 12(b)(6), he has pleaded sufficient facts to state a claim under the “integrated
employer” doctrine. Moreover, the Stevenson Automotive Group defendants do not challenge the

21

substantive aspects of their potentially-integrated “employer” status, such as the employeenumerosity requirement or the minimum-workweek requirement.7
The court now turns to the Stevenson Automotive Group defendants’ arguments as they
relate to the merits of plaintiff’s claims.
2.

Claim I

The Stevenson Automotive Group defendants next contend that plaintiff has not pleaded
sufficient facts to survive a motion to dismiss Claim I, his FMLA claim. Specifically, those
defendants contend that the facts alleged are illogical and insufficient to state a claim under an
“interference” theory of liability and also that, to the extent plaintiff contends he was fired in
retaliation for exercising his FMLA rights, that such allegations do not constitute a violation of the
FMLA.
The FMLA entitles qualified employees to 12 workweeks worth of leave during any 12month period for a variety of reasons, including leave taken because of a “serious health condition
that makes the employee unable to perform the functions of [his] position” and leave taken “in order
to care for the spouse . . . if such spouse . . . has a serious health condition.” 29 U.S.C. § 2612(a)(1)
& (a)(1)(C)–(D).8 Subject to certain limitations not relevant here, any employee who takes FMLA
leave is entitled to be restored either to his previous position, or an “equivalent position,” defined
as one with equivalent benefits, pay, and other terms and conditions of employment, upon return
7

The Stevenson Automotive Group defendants challenged initially plaintiff’s failure to allege facts as to each
constituent member’s total number of employees. However, these defendants do not challenge that, if considered as a
single entity, the numerosity requirement is satisfied. In joint employment or integrated employer cases the “employeenumerosity’ requirement contained in both the FMLA and ADAAA is satisfied where the unified employer meets the
statutory requirement. See Swallows, 128 F.3d at 993 n.4 (6th Cir. 1997).
8

The Stevenson Automotive Group defendants do not, at this time, contend that plaintiff’s wife was not
suffering from a “serious health condition” at the time he took leave on January 14, 2014. Therefore, the court assumes
that plaintiff’s wife was suffering from such a condition.

22

from leave. § 2614(a)(1). These affirmative, substantive obligations are known as “prescriptive
rights.” See Dotson v. Pfizer, Inc., 558 F.3d 284, 294 (4th Cir. 2009). In addition to prescriptive
rights, the FMLA also provides “proscriptive” rights, which “protect employees from discrimination
or retaliation for exercising their substantive rights under the FMLA.” Yashenko v. Harrah’s NC
Casino Co., 446 F.3d 541, 546 (4th Cir. 2006); see also § 2615(a); 29 C.F.R. § 825.220(c). An
employee’s proscriptive rights also protect him from interference with his prescriptive rights. 29
U.S.C. § 2615(a); see also Adams v. Anne Arundel Cty. Pub. Schs., 789 F.3d 422, 426 (4th Cir.
2015).
a.

Interference

To prove an “interference” claim under the FMLA, an employee must show 1) that he is
entitled to an FMLA benefit; 2) his employer interfered with the provision of that benefit; and 3) that
interference caused him harm. Adams, 789 F.3d at 427 (citing Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81, 89 (2002)). The Stevenson Automotive Group defendants argue that plaintiff has
not pleaded sufficiently, and indeed cannot satisfy, the second element, where he was not denied
leave. They also suggest plaintiff has suffered no harm.
There are two potential bases for plaintiff’s interference claim identifiable in the complaint.
First, plaintiff suggests that defendants interfered with his FMLA leave where they forced him to
return to work on January 2, 2014, without a doctor’s approval.9 Second, plaintiff suggests that
defendants improperly denied him leave for his serious medical condition from January 2, 2014, up
to and including January 14, 2014, when he ultimately was granted leave to mourn the loss of his

9

To the extent plaintiff contends that the Stevenson Automotive Group defendants forced his December 2013
leave upon him, an interference claim based in such allegations is not cognizable under the FMLA. Nothing in the
FMLA prohibits an employer from placing an employee on involuntary leave, or offering leave to the employee without
first receiving a qualifying request. See Moss v. Formosa Plastics Corp., 99 F. Supp. 2d 737, 741 (M.D. La. 2000).

23

stillborn son, as well as from January 27, 2014, up to and including February 20, 2014, the date on
which plaintiff was terminated.
On the first potential ground for liability, plaintiff has not pleaded sufficient facts to survive
a motion to dismiss. Plaintiff’s lack of identifiable harm renders the pleading deficient. “The
FMLA provides no relief unless the employee has been prejudiced by the violation.” Ragsdale, 535
U.S. at 89.

An employer is liable for “any wages, salary, employment benefits, or other

compensation denied or lost to such employee by reason of the violation” or, in a case where wages,
salary, employment benefits, or other compensation were not denied or lost, “any actual monetary
losses sustained by the employee as a direct result of the violation, such as the cost of providing
care, up to a sum equal to 12 weeks . . . of wages or salary for the employee.” 29 U.S.C. §
2617(a)(1)(A)(i). In addition, the employer may be liable for “appropriate” equitable relief, where
the plaintiff has been terminated or denied a promotion. § 2617(a)(1)(B). Where a plaintiff has
failed to allege any monetary or beneficial loss of the type specified in the statute, he cannot state
a claim under the FMLA. See Evans v. Books-A-Million, 762 F.3d 1288, 1296 (11th Cir. 2014);
Anderson v. Discovery Commc’ns., LLC, 517 F. App’x 190, 198 (4th Cir. 2013); see also Campbell
v. Jefferson Univ. Physicians, 22 F. Supp. 3d 478, 486 (E.D. Pa. 2014) (awarding summary
judgment where plaintiff failed to prove any evidence of damages); Dodgens v. Kent Mfg. Co., 955
F. Supp. 560, 564–65 (D.S.C. 1997) (awarding summary judgment where employer technically
violated FMLA but employee suffered no harm).
As to the Stevenson Automotive Group defendants’ alleged December 2013 interference
with plaintiff’s FMLA rights, through Daniel and McCarthy, plaintiff has pleaded only one type of
harm: a longer recovery period. (See Compl. ¶93). While a longer recovery may be an identifiable

24

type of harm, it is not the type of harm subject to recompense under the FMLA. The complaint does
not suggest that the Stevenson Automotive Group defendants’ alleged interference with plaintiff’s
FMLA rights in December 2013 caused him to lose any wages, salary, or other benefits. Moreover,
although the FMLA does not require monetary harm in every case, Evans, 762 F.3d at 1296–97,
plaintiff also has not alleged any appropriate equitable relief, such as front pay, and was not
terminated as a result of the alleged December 2013 interference. Because plaintiff has failed to
allege any harm, he cannot state an interference claim and his FMLA claim against the Stevenson
Automotive Group defendants, grounded in their alleged December 2013 interference with his
FMLA rights, must be dismissed. Edgar v. JAC Prods, Inc., 443 F.3d 501, 507–08 (6th Cir. 2006)
(noting FMLA is not a “strict-liability statute”).
On the second potential ground, plaintiff also has failed to plead sufficient facts to survive
the Stevenson Automotive Group defendants’ motion to dismiss. To properly allege harm under the
FMLA, a plaintiff must provide facts demonstrating his entitlement to lost wages, salary, or
employment benefits; in addition, a plaintiff may satisfy the “harm” element by alleging facts
demonstrating his entitlement to equitable relief. See 29 U.S.C. § 2617(a)(1); Evans, 762 F.3d at
1296–97. Plaintiff has not done so. Rather, he merely has alleged that his recovery period was
extended. That type of harm is not actionable under the FMLA. Id.
In sum, plaintiff’s FMLA interference claim must be dismissed as to the Stevenson
Automotive Group defendants. Plaintiff has failed to allege an actionable harm under the statute.
b.

Retaliation

Plaintiff also contends that the Stevenson Automotive Group defendants retaliated against
him by terminating his employment after he requested FMLA leave between January 2 and January

25

14, 2014, and for a second time during the week of February 10, 2014, and ultimately took leave
from December 18, 2013, until January 2, 2014, and then again from January 15, 2014, until January
27, 2014. In their motion to dismiss, the Stevenson Automotive Group defendants contend that the
basis for plaintiff’s claim is unfounded, where he does not allege that he was fired for “opposing [a]
practice made unlawful by [the FMLA].” 29 U.S.C. § 2615(a)(2). The Stevenson Automotive
Group defendants’ argument is without merit.
The FMLA “does not specifically forbid discharging an employee in retaliation for his use
of FMLA leave.” Dotson, 558 F.3d at 294. However, the Fourth Circuit has recognized that
terminating an employee on that basis is a violation of an employee’s proscriptive rights under the
FMLA, see id. at 294–95, as the FMLA “prohibits an employer from discriminating or retaliating
against an employee . . . for having exercised or attempted to exercise FMLA rights.” 29 C.F.R. §
825.220(c). FMLA retaliation claims, like Title VII retaliation claims, are analyzed under the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 794, 800–06 (1973).
Yashenko, 446 F.3d at 550–51.
To prove an FMLA retaliation claim, plaintiff must demonstrate “that he engaged in
protected activity, that the employer took adverse action against him, and that the adverse action was
causally connected to the plaintiff’s protected activity.” Id. at 551. However, at the pleading stage,
plaintiff need not specifically articulate every element of the prima facie case under McDonnell
Douglas, which “is an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 510 (2002). Rather, at this early stage, the typical rules for evaluating the
sufficiency of the complaint apply. Id. at 510–11. In light of that fact, the court readily concludes
plaintiff has stated a claim for retaliation. Plaintiff alleges that he took FMLA leave from December

26

19, 2013, until January 2, 2014, and again from January 15, 2015, until January 27, 2015. In
addition, plaintiff alleges that he requested leave from January 2, 2014, until January 14, 2014, and
again during the week of February 10, 2014. Plaintiff alleges that after his February 10, 2014,
request for leave, McCarthy “admonished” him and advised against “pursu[ing] that course of
action.” (Compl. ¶87). Finally, plaintiff alleges that 10 days later he was asked to resign, and
ultimately was fired. See Yashenko, 446 F.3d at 551 (“While evidence as to the closeness in time
‘far from conclusively establishes the requisite causal connection, it certainly satisfies the less
onerous burden of making a prima facie case of causality.’”) (citing Williams v. Cerberonics, Inc.,
871 F.2d 452, 457 (4th Cir. 1989)).
Thus, defendants’ motion to dismiss plaintiff’s FMLA claim must be denied on its second
point of attack: plaintiff’s retaliation claim. The FMLA recognizes a cause of action for retaliation
and plaintiff has pleaded sufficient facts to state a claim.
3.

Claim II

Claim II alleges that plaintiff was actually disabled as a result of his closed head injury and
concussion, and that the Stevenson Automotive Group defendants interfered with his attempts to
exercise his rights under the ADAAA, failed to provide him with a necessary accommodation, and
retaliated against him for attempting to exercise his rights under the ADAAA. The Stevenson
Automotive Group defendants move to dismiss Claim II, arguing that plaintiff has failed to allege
sufficient facts from which the court can infer that he is “substantially limit[ed]” in one or more
major life activities.
The ADAAA prohibits discrimination against “a qualified individual on the basis of
disability in regard to job application procedures, the hiring, advancement, or discharge of

27

employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). A claim under the ADAAA requires proof that 1) the plaintiff
is a “qualified individual with a disability”; 2) he “was discharged,” or otherwise suffered an adverse
employment action; 3) he “was fulfilling h[is] employer’s legitimate expectations at the time” of said
adverse employment action; and 4) “the circumstances of [that adverse employment action] raise
a reasonable inference of unlawful discrimination.” Rohan v. Networks Presentations LLC, 375
F.3d 266, 273 n.9 (4th Cir. 2004). An individual may establish his status as a “qualified individual
with a disability” in one of three ways: 1) proof that the individual is “actually disabled,” and that
such disability “substantially limits one or more major life activities”; 2) proof that the individual
has a record of such impairment; or 3) proof that the individual is “regarded as having such an
impairment.” § 12102(1).
In Claim II, plaintiff asserts his status as a “qualified individual with a disability” under the
“actually disabled” prong of the statute. See § 12102(1)(A). Under that prong, a disability must be
an impairment that “substantially limits one or more major life activities.” Id. The category of
“major life activity” includes activities such as “caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.” § 12012(2)(A). In addition, it includes “the
operation of a major bodily function.” § 12012(2)(B).
The meaning of “disability,” and especially the “substantially limits” component of its
definition, has been a hot-button issue in recent years. In Sutton v. United Air Lines, 527 U.S. 471
(1999), the United States Supreme Court, interpreting the provisions of the ADA, held that a person
was not “substantially limited” in a major life activity, and thus not disabled, where a person could

28

“tak[e] measures to correct for, or mitigate, a physical or mental impairment.” Id. at 482. Likewise,
in Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), the Court held that, under the
ADA, a person was not “substantially limited” in a major life activity unless the impairment had a
“permanent or long term” negative impact. Id. at 198. In response to Sutton and Williams, the
Congress passed the ADAAA, which was specifically intended to abrogate their holdings. Pub. L.
No. 110-325, 122 Stat. 3553 § 2(b). Congress believed that Williams set an “inappropriately high
level of limitation necessary to obtain coverage under the ADA.” Id. § 2(b)(5). Thus, the ADAAA
“provides that the term ‘disability’ must be ‘construed in favor of broad coverage of individuals . . .
to the maximum extent permitted by [the statute’s language].’” Class v. Towson Univ., 806 F.3d
236, 245 (4th Cir. 2015) (quoting 42 U.S.C. § 12102(4)(A)).
Notwithstanding the above, plaintiff’s allegations are too general to survive the Stevenson
Automotive Group defendants’ motion to dismiss. An impairment may be “substantially limiting”
even though it is transitive. See 29 C.F.R. § 1630.j(1)(ix). However, an impairment’s duration is
not irrelevant to the “substantially limiting” calculus, but, rather, must be considered in concert with
the alleged impairment’s severity. See § 1630.2(j)(1)(ix) & (app.). Plaintiff acknowledges that his
alleged impairment was to last for less than six months. (See Compl. ¶153) (describing plaintiff’s
injury as “transitory”); see also 29 C.F.R. §§ 1630.2(j)(ix) & 1630.15(f) (defining “transitory” as
lasting less than six months). However, plaintiff did not plead with specificity the expected duration
of his impairment. Nor did he allege any facts as to the severity thereof. Where plaintiff has failed
to plead the expected duration of his impairment, as well as its severity, the court cannot determine
its effect on any major life activity. Accordingly, the Stevenson Automotive Group defendants’
motion must be granted.

29

4.

Claim III

Plaintiff asserts Claim III under the “regarded as” prong of the ADAAA. 42 U.S.C. §
12102(1)(C) & (3). The Stevenson Automotive Group defendants argue that Claim III must be
dismissed because plaintiff has failed to plausibly allege that he was a “qualified individual with a
disability” under the “regarded as” prong, where he did not plead an essential predicate to the
application of that prong: that defendants “mistakenly believe[d]” he had an impairment that
substantially limited one or more major life activities.

The Stevenson Automotive Group

defendants’ contention is without merit.
The elements of an ADAAA claim brought under the “regarded as” prong essentially are the
same as those elements necessary to state a claim under the ADAAA’s “actually disabled” prong.
See Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 150, 153 (4th Cir. 2012). The only difference
between the two claims is the nature of proof required to demonstrate that the plaintiff is a “qualified
individual with a disability.” Under the “regarded as” prong, individuals who are “regarded as
having” a physical or mental impairment that substantially limits one or more of their major life
activities are protected by the ADAAA. See 42 U.S.C. § 12102(1)(A) & (C). To be “regarded as”
having such an impairment, the plaintiff must demonstrate that he suffers from “an actual or
perceived physical or mental impairment whether or not the impairment limits or is perceived to
limit a major life activity.” § 12102(3)(A). Thus, unlike the “actually disabled” prong, which
requires proof that an impairment substantially limits a major life activity, to plead a successful
claim under the “regarded as” prong, a plaintiff need only show that he suffers from an impairment,
whether or not that impairment actual affects him or is only perceived by his employer and
regardless of whether that impairment substantially limits any major life activity. See id.; see also

30

29 C.F.R. § 1630.2(l)(1); Wolfe v. Postmaster Gen., 488 F. App’x 465, 468 (11th Cir. 2012); Marsh
v. Terra Int’l (Okla.), Inc., __ F. Supp. 3d __, 2015 WL 4139421, at *13 (N.D. Okla. 2015).
In light of that legal framework, plaintiff has carried his burden of pleading sufficient facts
to demonstrate a plausible entitlement to relief as to Claim III. Plaintiff has satisfied the challenged
“qualified individual with a disability element,” where it is clear that he suffered from two actual
impairments, specifically a concussion and closed head injury. Further, plaintiff has successfully
pleaded the remaining elements. Plaintiff alleges he suffered an adverse employment action when
he was terminated and further alleges that he was meeting the Stevenson Automotive Group
defendants’ legitimate expectations. Finally, plaintiff’s termination occurred under circumstances
that give rise to the inference of discrimination. First, the Stevenson Automotive Group defendants
knew of plaintiff’s impairments, as evidenced by the allegations that defendant Stevenson, as
manager of the Stevenson Automotive Group defendants, allowed plaintiff to take extended leave
in December 2013, and that plaintiff repeatedly requested leave to recover from his closed head
injury in January and February 2014. Second, plaintiff was terminated shortly after sustaining the
alleged impairments; plaintiff worked only six weeks after sustaining his alleged injuries prior to
being terminated. The timing of the alleged discriminatory acts is sufficient to carry plaintiff’s
pleading burden on the element of causation. See Williams, 871 F.2d at 457 (timing sufficient to
plead causation under Title VII, which employs similar “because of” language).
Nevertheless, the Stevenson Automotive Group defendants propound a mistaken belief
requirement. In Haulbrook v. Michelin, 252 F.3d 698 (4th Cir. 2001), the Fourth Circuit held that
in order to pursue a claim under the “regarded as” prong a plaintiff must prove that either his
employer mistakenly believed he had a physical or mental impairment that substantially limits a

31

major life activity or his employer mistakenly believed that an actual, non-limiting impairment
substantially limits a major life activity. Id. at 703 (citing Sutton, 527 U.S. at 489). The Stevenson
Automotive Group defendants acknowledge that Haulbrook is based in the since-abrogated Sutton
decision, but, still, argue that it remains good law even after the 2008 enactment of the ADAAA.
To bolster their argument, defendants direct the court to Coursey v. University of Maryland Eastern
Shore, 577 F. App’x 167 (4th Cir. 2014). However, the court is not persuaded.
The pre-amendment version of the ADA provided no guidance for interpreting the “regarded
as” prong. See 42 U.S.C. § 12102 (2006). One was “actually disabled” if he had “a physical or
mental impairment that substantially limit[ed] one or more major life activities,” and was “regarded
as” disabled if he was “regarded as having such an impairment.” 42 U.S.C. § 12102(2)(A) & (C)
(2006). With no statutory guidance, courts relied on the reflexive qualities of the phrase “such an
impairment” and interpreted the “regarded as” prong to require the plaintiff prove that he was
“regarded as” having a “substantially limiting impairment.” To do so, the plaintiff was required to
show that either his employer mistakenly believed he had a physical or mental impairment that
substantially limited a major life activity or his employer mistakenly believed that an actual, nonlimiting impairment substantially limits a major life activity. See, e.g., Haulbrook, 252 F.3d at 703.
However, the “mistaken belief” requirement is inconsistent with the new, more detailed
definition of “disability,” and specifically the more detailed definition of the “regarded as” prong,
used in ADAAA. See 42 U.S.C. § 12102(1)(C) & (3).10 In effect, it eliminates the reflexive quality

10

Although the import of the statute is clear, where the “regarded as” portion of the statute, § 12102(1)(C),
specifically references a more thorough definition of the “regarded as” contained at § 12102(3), the language itself is
quizzical. Section 12102(1)(C) covers individuals who are “regarded as having such an impairment,” § 12102(1)(C)
(emphasis added), or, in other words, individuals who are regarded as having “a physical or mental impairment that
substantially limits one or more major life activities.” § 12102(1)(A). Notwithstanding the statute’s reflexive language,
the statutory definition of “regarded as” makes it clear that one may be “regarded as having [a substantially limiting]

32

of the word “such” and instructs the reader to interpret the “regarded as” language by relying on a
separate, newly-added section. See 2 U.S.C. § 12102(1)(C). Under that section, the ADAAA
defines “regarded as” to include individuals who have an actual or perceived impairment, regardless
of whether that impairment has any effect on a major life activity. § 12102(3)(A). In other words,
an individual is “regarded as” disabled where 1) he is actually impaired and such impairment is
known to his employer or 2) his employer perceives him to be impaired. Id. Notably, the statute
uses the word “impaired,” not “disabled.”
The regulations confirm that interpretation of the “regarded as” prong, which is to be applied
in a “straightforward” manner, without the need to establish any “mistaken belief” on the part of the
employer. 29 C.F.R. § 1630.2(l) (app.). For instance, “if an employer refused to hire an applicant
because of skin graft scars, the employer has regarded the applicant as an individual with a
disability.” Id. As that example makes clear, the applicant need not establish that her putative
employer had any mistaken belief as to the limiting effects of her impairment, or even that the
putative employer knew the precise nature of the impairment. Rather, it is sufficient under the
“regarded as” prong that her employer treated her differently on the basis of her impairment.
Moreover, the low standard required to proceed under the “regarded as” prong is offset by the
“transitory and minor” defense, which was implemented as part of the ADAAA. To circumvent the
apparent harshness of the scope of the “regarded as” prong, Congress provided that an individual

impairment” even if the impairment is not perceived as substantially limiting a major life activity. § 12102(3)(A); see
also, e.g., DiGiosia v. Aurora Health Care, Inc., 48 F. Supp. 3d 1211, 1218 n.4 (E.D. Wis. 2014). As one commentator
has noted “[t]he amended provision is therefore analogous to ‘wanting a dog that fetches sticks, except that the dog does
not have to fetch sticks.’” Jill C. Anderson, Misreading Like A Lawyer: Cognitive Bias in Statutory Interpretation, 127
Harv. L. Rev. 1521, 1567 n.195 (2014).

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may not be “regarded as” disabled where the relevant impairments are “transitory and minor.” 42
U.S.C. § 12102(3)(B).
As the Stevenson Automotive Group defendants point out, this analysis is in direct conflict
with the analysis of Coursey, which tacitly endorsed application of the Sutton-Haulbrook test to the
amended “regarded as” prong. See Coursey, 577 F. App’x at 174. However, that opinion is not
persuasive. First, the use of the “mistaken belief” requirement in an unpublished opinion of the
Fourth Circuit does not bind this court. See Pressley v. Tupperware Long Term Disability Plan, 553
F.3d 334, 339 (4th Cir. 2009) (recognizing that ordinarily, unpublished opinions are not accorded
precedential value but that such decisions “are entitled only to the weight they generate by the
persuasiveness of their reasoning”). Second, the Coursey court apparently was not asked to decide
the vitality of the Sutton-Haulbrook formulation of the “regarded as” prong. Although the issue
briefly was raised in the appellant’s brief, see Brief of Appellant at 23–24, Coursey, 577 F. App’x
167 (4th Cir. 2014), (No. 13-1626, DE 10), the substance of appellant’s argument effectively
conceded the continued vitality of the Sutton-Haulbrook test. See id. at 24–25.
Third, and finally, the reasoning used in the unpublished Coursey opinion is inconsistent
with the express purpose of the ADAAA. See Pub. L. No. 110-325 § 2(b)(5). Requiring the
plaintiff to prove that his employer “mistakenly believed” him to be substantially impaired runs
contrary to the express purpose of the ADAAA, to ensure that covered entities “have complied with
their obligations” under the statute. See id. (noting that one purpose of the ADAAA is to “convey
that it is the intent of Congress that the primary object of attention in cases brought under the ADA
should be whether entities covered under the ADA have complied with their obligations”). To
require plaintiff prove his employer’s “mistaken belief” as to the existence of the limiting nature of

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his alleged disability improperly would raise the quantum of facts necessary to state a claim under
the ADAAA, shift the central focus of the plaintiff’s claim away from his employer’s compliance
with the statute’s mandate, and impermissibly restrict coverage under the “regarded as” prong.
In any case, the Stevenson Automotive Group defendants also contend that plaintiff cannot
demonstrate he was “regarded as” disabled simply because defendant Stevenson allowed him to take
an extended period of leave during December 2013. They argue that such “demonstrations of
concern” are insufficient to establish that they “regarded” plaintiff’s impairment as “substantially
limiting,” citing Reynolds v. American National Red Cross, 701 F.3d 143 (4th Cir. 2012). In
Reynolds the plaintiff’s employer told plaintiff “not to move [a] baby grand piano because of
[plaintiff’s] back pain.” Id. at 153. The Fourth Circuit held that the employer’s isolated statement,
without more, was insufficient, at the summary judgment stage, to prove that the employer
“regarded” the plaintiff as “substantially limited,” but, rather, was more appropriately characterized
as a statement of “concern for a coworker.” Id.
Reynolds is inapplicable here.

The Fourth Circuit’s holding relied on a different

interpretation of what it meant to be “regarded as” disabled, an interpretation founded on the
abrogated Sutton case that required a mistaken belief about the substantially limiting nature of an
actual or perceived impairment. Id. See generally Haulbrook, 252 F.3d at 703 (stating test for preamendment “regarded as” prong). The ADAAA has rendered such a “stray remarks” analysis
superfluous; the “regarded as” prong no longer requires the plaintiff to prove his employer regarded
his impairment as “substantially limiting.” Under the ADAAA, an individual is “regarded as”
disabled, and thus is a “qualified individual with a disability,” where 1) he is actually impaired and
his employer knows of that impairment or 2) his employer perceives him to be impaired. See 42

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U.S.C. § 12102(3)(A); 29 C.F.R. § 1630.2(l) & (app.). As discussed above, plaintiff has plausibly
alleged that he was a “qualified individual with a disability” under the “regarded as” prong.
In sum, the court rejects the Stevenson Automotive Group defendants’ arguments on what
it means to be “regarded as” disabled under the ADAAA. A plaintiff may be “regarded as” disabled,
and thus may be a qualified individual with a disability, where he suffers an actual impairment that
is known to his employer or his employer perceives him to be impaired. That same plaintiff is
“regarded as” disabled irrespective of whether his alleged impairment limits any major life activity.
See 42 U.S.C. § 12102(3)(A); 29 C.F.R. § 1630.2(l)(1). Plaintiff has alleged that he was actually
impaired and that the Stevenson Automotive Group defendants knew of his impairment.
Accordingly, the Stevenson Automotive Group defendants’ motion to dismiss must be, and is,
denied.
5.

Claim IV

The Stevenson Automotive Group defendants contend that the court should exercise its
discretion, decline to exercise supplemental jurisdiction over, and dismiss Claim IV, plaintiff’s state
law wrongful discharge claim, under 28 U.S.C. § 1367(c). That argument is grounded in §
1367(c)(3), which permits the court to dismiss a supplemental, state law claim where it has
dismissed all claims over which it has original jurisdiction, and turns on the substance of the
Stevenson Automotive Group defendants’ motion attacking Claim I, Claim II, and Claim III. Where
two claims over which the court has original jurisdiction, Claim I and III, survive defendants’
motion to dismiss, defendants’ argument as to why Claim IV should be dismissed is moot.
Accordingly, the Stevenson Automotive Group defendants’ motion mounting an attack on Claim
IV is denied.

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6.

Claim V

The Stevenson Automotive Group defendants finally move to dismiss Claim V, plaintiff’s
NCWHA claim, under 28 U.S.C. § 1367(a), arguing that it does not form part of the same
constitutional “case or controversy” as Claim I or Claim III because it does not share a “common
nucleus of operative facts” with those claims. 28 U.S.C. § 1367(a); see also United Mine Workers
v. Gibbs, 383 U.S. 715, 725 (1966). A district court's supplemental jurisdiction is governed by 28
U.S.C. § 1367, which provides, in relevant part, that “the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III of the United States
Constitution.” 28 U.S.C. § 1367(a); see also Axel Johnson, Inc. v. Carroll Carolina Oil Co., 145
F.3d 660, 662 (4th Cir. 1998). For purposes of § 1367(a), claims “form part of the same case or
controversy” if they “derive from a common nucleus of operative fact” or “are such that [plaintiff]
would ordinarily be expected to try them all in one judicial proceeding.” Id. (quoting Gibbs, 383
U.S. at 725).
Supplemental jurisdiction, along with its predecessors, ancillary and pendent jurisdiction,
have been described as “flexible.” See Washington v. Union Carbide Corp., 870 F.2d 957, 960 (4th
Cir. 1989). Nevertheless, the doctrine’s flexibility is not endless. Supplemental jurisdiction “does
not encompass claims when one count is ‘separately maintainable and determinable without any
reference to the facts alleged or contentions stated in or with regard to the other count.’” White v.
Cty. of Newberry, S.C., 985 F.2d 168, 171 (4th Cir. 1993) (quoting Hales v. Winn-Dixie Stores, Inc.,
500 F.2d 836, 848 & n.12 (4th Cir. 1974)). Thus, the court examines both the legal elements of
Claim V, as compared with Claim I and Claim III, as well as the facts in support of those claims.

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Upon careful consideration of the commonalities between Claim V and plaintiff’s remaining federal
claims, the court determines that Claim V does not form part of the same case or controversy and
must be dismissed.11
Claim V finds its basis not only in plaintiff’s termination but also in the larger context of
defendants’ allegedly unlawful method for calculating, and withholding, his earned compensation.
Plaintiff alleges that defendants hired Wayne Fortier as their Chief Financial Officer “sometime in
2011 or 2012,” and that thereafter Fortier “implemented a program of charge backs and ‘packs’
against commissions/bonuses/incentives earned by [plaintiff] and other similarly situated
employees.” (Compl. ¶101). Plaintiff contends that this system of deductions was never reduced
to writing, and that, as a result the Stevenson Automotive Group defendants began withholding his
earned pay without his consent, in violation of N.C. Gen. Stat. § 95–25.8. Plaintiff alleges that he
became aware of this system only after he was terminated. In addition, plaintiff alleges that, at the
time of his termination, the Stevenson Automotive Group defendants failed to compensate him fully
for his earned wages and commissions, consistent with the previously implemented payment policy,
as well as his accrued vacation time, incentives, and longevity pay, in violation of N.C. Gen. Stat.
§ 95–25.7.
Claim I, as well as Claim III arise out of plaintiff’s December 2013 closed head injury and
the effects accruing therefrom. The facts supporting Claim I and Claim III all are confined to the
roughly two-month period between plaintiff’s injury and his subsequent termination. Generally,

11

Where the court already has dismissed Claim II as pleaded, see supra § B.3, the court need not address the
Stevenson Automotive Group defendants’ § 1367(a) argument with respect to that Claim. However, if the court were
to analyze whether or not Claim II and Claim V formed part of the same case or controversy, that is, whether they shared
a common nucleus of operative fact, the court would hold that they do not.

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these claims require plaintiff prove that he was entitled to a benefit, such as leave, an
accommodation, or continued employment, and that defendants took steps to deny him that benefit.
Neither Claim I, nor Claim III, share such a common nucleus of operative fact with Claim
V to support the exercise of supplemental jurisdiction over that claim under § 1367(a). Plaintiff’s
federal claims require reference to a finite period of time, the legal obligations arising out of
plaintiff’s injuries, and defendants’ response to those legal obligations. By contrast, resolution of
Claim V demands analysis of a larger period of time, as well as a different type of evidence. In
particular, Claim V requires analysis of record keeping and employee compensation practices, as
compared to plaintiff’s federal claims, which require only analysis of individual actions. Moreover,
although Claim V, at least in part, coincides with plaintiff’s allegedly discriminatory or retaliatory
termination, that small commonality between Claim V and Claim I and Claim III is insufficient to
support the exercise of supplemental jurisdiction. Proof of Claim I, as well as Claim III, will require
evidence as to the impetus behind plaintiff’s termination. On Claim V, however, the fact of and
justifications behind plaintiff’s termination are of no moment, and the only legal question is strict
compliance with the terms of the statute.
In sum, Claim V does not share a common nucleus of operative fact with Claim I or Claim
III. Given the legal and factual distance between plaintiff’s remaining federal claims and Claim V,
it hardly can be said that plaintiff would ordinarily be expected to try them together, in one judicial
proceeding. Accordingly, Claim V must be dismissed.
C.

Defendant John Stevenson’s Motion to Dismiss
Defendant Stevenson’s motion to dismiss largely mirrors those arguments made by the

Stevenson Automotive Group defendants. In particular, defendant Stevenson moves to dismiss the

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claims against him because plaintiff fails to allege that defendant Stevenson was his “employer.”
The court agrees. Plaintiff’s allegations against defendant Stevenson are quintessentially different
from those levied against the Stevenson Automotive Group defendants. Plaintiff’s allegations
against defendant Stevenson sound not in his capacity as an employer, but, rather, in his capacity
as the manager or owner of the Stevenson Automotive Group defendants. Accordingly, defendant
Stevenson’s motion must be granted to the extent plaintiff asserts his claims against defendant
Stevenson in his capacity as an “employer.”
In addition, inasmuch as plaintiff asserts his claims against defendant Stevenson in his
capacity as manager or owner of the Stevenson Automotive Group defendants, plaintiff’s claim is
legally unfounded. Although executives typically may be liable under the FMLA, see 29 U.S.C. §
2611(d); 29 C.F.R. § 825.104(d); Brock v. Hamad. 867 F.2d 804, 808–09 & n.6 (4th Cir. 1989), the
complaint falls short of actually alleging that defendant Stevenson had any direct role in the
transactions giving rise to plaintiff’s various claims. Notably, any alleged interference or retaliation
occurred at the hands of either McCarthy or Daniel. Accordingly, Claim I, to the extent it is alleged
against defendant Stevenson in his managerial capacity, must be dismissed under Rule 12(b)(6). As
to plaintiff’s ADA claims, plaintiff concedes that defendant Stevenson cannot be liable in his
capacity as a manger or owner on either Claim II or Claim III.
In addition, plaintiff suggests, but does not outright concede, that Claim IV, his wrongful
discharge claim, similarly should be dismissed to the extent it sounds against defendant Stevenson
in his managerial capacity. The court concludes that it must. Under North Carolina law a wrongful
discharge claim cannot be brought against an individual. See Garner v. Rentenbach Constructors,
Inc., 350 N.C. 567, 571–72 (1999) (noting a claim for wrongful discharge accrues where “[a]n

40

employer wrongfully discharges an at-will employee” for an unlawful reason); see also Iglesias v.
Wolford, 539 F. Supp. 2d 831, 839 (E.D.N.C. 2008).
In sum, each of plaintiff’s claims against defendant Stevenson must be dismissed. Plaintiff
has failed to allege successfully that defendant Stevenson was his “employer” under the “joint
employment” or “integrated employer” theories of liability. In addition, on the facts alleged
defendant Stevenson cannot be liable to plaintiff under the FMLA in his capacity as owner or
manager of the Stevenson Automotive Group defendants. Moreover, defendant Stevenson is not
susceptible to liability under the ADA, or on plaintiff’s wrongful discharge claim, as a matter of law.
The court need not address Claim V as it relates to defendant Stevenson, where it does not form part
of the same case or controversy as plaintiff’s remaining claims. In so holding, the court rests on its
prior analysis.
CONCLUSION
Based on the foregoing, the Stevenson Automotive Group defendants’ motion to dismiss (DE
24) is GRANTED in PART and DENIED in PART. Claim I, inasmuch as it alleges interference
with plaintiff’s proscriptive rights under the FMLA, as well as Claim II and Claim V are
DISMISSED WITHOUT PREJUDICE as to those defendants. Claim I, to the extent it alleges
retaliation under the FMLA, as well as Claim III and Claim IV, all may proceed. Defendant John
Stevenson’s motion to dismiss (DE 22) is GRANTED. Each of plaintiff’s claims are DISMISSED
WITHOUT PREJUDICE inasmuch as they are asserted against defendant Stevenson in his capacity
as an employer. As to plaintiff’s claims asserted against defendant Stevenson in his managerial
capacity, Claim I fails and is DISMISSED WITHOUT PREJUDICE where plaintiff has not alleged
sufficient facts in support of that claim. In addition, to the extent Claim II, Claim III, and Claim IV

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sound against defendant Stevenson in his capacity as manager or owner of the Stevenson
Automotive Group, those claims are DISMISSED WITH PREJUDICE, as no amendment to the
complaint could cure their legal deficiencies. Finally, to the extent Claim V is lodged against
defendant Stevenson in his managerial capacity, it is DISMISSED WITHOUT PREJUDICE where
it does not share a common nucleus of operative fact with any of plaintiff’s federal claims.
SO ORDERED, this the 24th day of February, 2016.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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